SPOUSAL EXCLUSION

We believe that the spousal exclusion which prohibits a spouse from charging the other with rape should be eliminated entirely. The Law Revision Commission proposal does the opposite of what might be expected, namely, it actually broadens the present spousal exclusion concept way beyond that of those who are married to each other, and includes anyone living together in such a relationship regardless of whether they meet all of the standards of "common law" marriage. It limits the proposed exception to the exclusion to those only under legal decree of separation, not recognizing the more common separation in fact. It makes exception to the rule for first degree sexual assault unless the victim is a minor, for which distinction there is no reasonable rationale. It does retain it as to second degree. We urge its total elimination. At the very least, it should be retained only for those legally married, not just living together. There is no basis for expanding rather than limiting the rule, if the rule must be continued.

Mr. MAZZOLI. It appreciate your offer and it may be that the Commissioners will have some questions to propound and could do so in writing. Ms. Avner.

STATEMENT OF JUDITH AVNER, REPRESENTING THE WOMEN'S LEGAL DEFENSE FUND, ACCOMPANIED BY VAL JONES

Ms. AVNER. My name is Judith Avner. I am an attorney in private practice in the District of Columbia. Judith Lichtman, the executive director of the Women's Legal Defense Fund, is unable to be here this morning. With me is Val Jones who is on the staff of the Abused Women's Task Force of the Women's Legal Defense Fund.

The Women's Legal Defense Fund is an organization dedicated to the fight to eliminate discrimination on the basis of sex in all aspects of our society.

We have long been interested in reform of our rape laws and we therefore welcome this opportunity to share our views with you. We intend to submit more extensive written comments in the future. At this point, we wish to comment on several of the provisions in the Law Revision Commission's proposal.

COMMENDS LAW REVISION COMMISSION

We commend the Law Revision Commission and its staff for the hard work that went into formulating this reform legislation. Especially important is treating all criminal sexual conduct in one statute. This more comprehensive approach to sexual assaults will allow for more efficient administration of justice by setting forth clearly and in one place, the range of criminal sexual activities.

We further applaud the definition of sexual assault to include both rape and sodomy. We feel that the trauma and criminality of a sexual assault is no less severe because both the actor and victim are male. And in addition, we do not feel that consensual sexual acts between adults should be criminally punishable.

LRC PROPOSALS OPPOSED

We would like to briefly but strenuously raise objections to several other provisions of the statute.

SPOUSAL EXCLUSION

First, we strongly take exception to the spousal exclusion in the proposal. We believe that the spousal exclusion should be completely

eliminated. The Women's Legal Defense Fund has been very active in developing programs to deal with the problems of abused women. Daily we receive pleas for help from women who have been physically and mentally abused by their husbands. These women are scared and vulnerable. Our research on battered women indicates that in 1974the Citizen's Complaint Center of Washington received between 7,500 and 10,000 complaints of spouse abuse.

Police rarely will make an arrest unless there are witnesses or a weapon is involved, and even when criminal action is attempted, prosecutors often fail to press charges, only 5 percent of the cases reported to the Assistant U.S. Attorney's Office were prosecuted in 1974.

Often a victim is reluctant to report an incident of spouse abuse because of the tremendous lack of legal protection and fear or retaliation by her spouse. From the research that is available, it is apparent that the family home is too often a cradle of violence. A leading authority in the field of domestic violence found that in 56 percent of the families studied, violence had occurred between spouses at least once, and in 26 percent, violence occurred frequently.

The Federal Bureau of Investigation reports that one-eighth of all homicides in the United States are spouse murders, and that one-fifth of all police fatalities occur as a result of police response to domestic disturbance calls. Some of these women are separated, although rarely under a judicial decree of separation as the LRC proposal requires, but the violence persists. In addition, since few people live under a judicial decree of separation although many do, in fact, live separately, this attempt to limit the exclusion is virtually worthless.

This society ought to be beyond the point of viewing a woman as the exclusive property of a man, to treat and abuse as he wishes. Women are individuals, and, as such, are entitled to protection of their physical integrity. This does not suddenly change because a woman marries. Domestic violence is on the rise in our society. It exists in all economic classes, racial and ethnic groups, and it tears at the base of our societal structure. Men, as husbands, should no longer be entitled to special protections they should be forced to accept the responsibility for their own action.

We also find the definition of "spouse" contained in the proposal does, in fact, broaden the spousal exclusion by extending its applicability to unmarried persons living together. The impact of this extention is very serious indeed, as it threatens an additional and significant group of women by threats to their physical integrity. We urge that the spousal exclusion be totally eliminated.

EVIDENCE RE SEX HISTORY

We further take issue with the proposals about sufficiency and admissibility of evidence. Judicial decisions in the District of Columbia have, in recent years, provided encouraging case law on the issues of corroboration and admissibility of the victim's prior sexual history. The proposal, however, rather than clearly and succinctly codifying the recent favorable case law, vests a great deal of discretion in the judge without giving him/her any meaningful guidelines.

AFFIRMATIVE DEFENSE

We are appalled by the creation of an "affirmative defense" if the defendant reasonably "believed" the victim would have consented if she/he had been capable of giving consent. Contrary to the Law Revi

sion Commission's commentary, we feel this defense may be valid in an extremely small number of cases.

Statutorily creating the defense is an open invitation for the accused to escape the consequences of his/her conduct. We further see no reason for allowing an actor who, previously had sexual relations with an individual to rely on that past relationship to engage in sexual acts without the victim's consent.

We seriously question the Law Revision Commission's assertion that the sallowance of this defense would foster ungrounded accusations of sexual assault.

OTHER CONCERNS

We would like to address several other points, including sentencing, broadening "position of authority" relationship, obtaining consent of the victim by trickery, definitions of guardian, sexual contact, and harm, and will do so in written comments submitted in the immediate future.

I would like to add that we too would be glad to submit written answers if there are written questions as part of that statement.

I have one personal comment and that is a recommendation that rather than being called sex offenses, that the title of this chapter be changed to "Sexual Assault Offenses."

SPOUSAL EXCLUSION

Mr. MAZZOLI. Thank you. What is the current state of art in other States who have recodified their criminal law with regard to spousal exemption?

Ms. LEWIS. I would have to provide that answer.

Mr. MAZZOLI. Ms. Avner.

Ms. AVNER. The only jurisdiction I know of is the State of Michigan which has not completely eliminated the spousal exclusion. It does eliminate it insofar as two people who have been living separately for 6 months.

Mr. MAZZOLI. As to the other jurisdictions, I believe Mr. Danzansky said some of them had recodified their laws in the relatively short period of time. There is no jurisdiction which has a spousal exemption. Ms. AVNER. There is another.

Mr. MAZZOLI. At this point, I would like to yield to counsel, Mr. Stein.

Mr. STEIN. There has been, I think, only one jurisdiction that includes in the concept of rape, husband against a wife, or spouses against each other. In cases of force, we thought there should be something to make it clear there is no special exception where rape is forcible, even by husband over wife.

Mr. MAZZOLI. The spousal exemption in the proposal of the Commission deals with only second degree sexual assault, that is, unlawful sexual contact, but there is no spousal exemption for forcible rape, what have you; is that correct?

Mr. STEIN. That is right.

Mr. MAZZOLI. In a sense the District of Columbia would be in the vanguard or certainly different, at least, with respect to other States which have addressed this issue.

Ms. LEWIS. If I may make an observation, I am really quite impressed with the testimony of the Women's Legal Defense Fund in

relating problems of family abuse and violence with this whole question of sexual assault.

I would be interested in trying to find out when these sexual assault legislations in other States were revised because we are now in a new consciousness with respect to the problem of family abuse.

In that sense, I think it makes sense for the District of Columbia, at this date in our history, to be looking at this problem.

Mr. MAZZOLI. Without presuming to speak for the Commission, I am sure they are anxious to have any legitimate information because it would help them when they go back to reconsider. Speaking for myself, there are some problems, it seems, in the proof matters when you are talking about spouses, particularly in the case of sexually related matters.

I have no further questions. Mr. Coleman?

EVIDENCE OF PRIOR SEX CONDUCT

Mr. COLEMAN. Ms. Avner, as far as the evidence is concerned, are we not actually going upstream? Most States that are revising are actually excluding this type of testimony of previous sexual acts?

Ms. AVNER. Yes. That should be more specifically spelled out. Mr. COLEMAN. You do not support the language in the proposal now?

Ms. AVNER. I do not think it is as specific as I would like to see it. I would like it to specifically state that

Mr. COLEMAN. Leave it up to the judge in chambers, to get the testimony before putting it before a jury?

Ms. AVNER. I also feel the way it reads now, it says, "Proposes to offer evidence concerning sexual reputation of the victim, the past sexual conduct of the victim, with defendant or other persons." I find the phrase "with persons other than the defendant" to be too broad. I would like to see that limited to other persons, unless evidence is needed to prove possible source of semen, injury or disease rather than any other sexual activities with another person.

Mr. COLEMAN. Other than that, you feel this is acceptable?

MS, AVNER. Other than that, I think it should specifically eliminate the need for corroboration.

Mr. COLEMAN. Will you spell these out in a legal proposal as far ás the language goes? Is that what you are going to do?

Ms. AVNER. Yes.

Mr. MAZZOLI. That would be helpful. Mr. Steers?

Mr. STEERS. On page 5 of the written version of your testimony, Ms. Lewis, you objected to the word "reasonable." In this same vein, later you referred to the word "substantially."

FEAR ASSAULT

Concentrating on the word "reasonable fear" before coercion can be found, you say the standard should be that the victim submitted because he or she was afraid. I am wondering what your comment would be about what I believe is a reasonable generalization about humanity, that there are some people who are really paranoid.

About 25 years ago, a woman was walking along the street in New York City. I opened my door, which made the normal clicking noise, and she practically jumped out of her skin and walked 5 or 10 feet out of her way, apparently afraid that I was about to attack her

I am wondering, do you agree that there are people who are maybe not neurotically or psychotically paranoid but are, nevertheless, afraid? They would be afraid even if there were no basis for fear and therefore, should we not have the word "reasonable" in there?

Ms. LEWIS. You are giving a hypothetical situation so I will have to enlarge on the story you started. Let us say this incident happened and something you did caused her to be afraid or frightened. What did you then do? To me, that is where the whole question of whether it was reasonable would come in.

If a situation like this occurred and one person observed another was indeed frightened, then acted further on the basis of that and assaulted the person

Mr. STEERS. We are not talking about assault.

Ms. LEWIS. It is the question of reasonable. Maybe we do have someone who tends to be nervous and gets frightened earlier than the other person would. What happens later, it seems to me, is what is important and what is reasonable in one instance may not be reasonable in another.

Mr. STEERS. I would only comment that the word "reasonable" would have to be interpreted, and is, throughout the law, both criminal and civil. There are many uses of the word "reasonable" in order to preclude convicting someone in the case of unlawful sexual contact, just because someone had an unreasonable fear.

The perpetrator, it seems to me, might assume there was no fear and might proceed to sexual contact. It seems to me what you are asking for is that a person be free to be convicted of unlawful sexual contact in the first degree, even though that person had no reason to believe that the victim was afraid. It was just all in the victim's extremely fervid imagination.

Ms. LEWIS. I would refer you to the proposals and the explanation in the legislation which the Commission has drafted. I think in there are some concepts having to do with the position of authority of the actor, and the victim.

Mr. STEERS. That is all I have.

Mr. MAZZOLI. Mr. Clarke?

Mr. CLARKE. I was concerned about the same point, Ms. Lewis. You noted that a lot would depend upon the reaction of a person in the Congressman's position in that situation, recognizing that the person was in fear.

Is there any requirement in the law, you eliminate the word "reasonable", that the actor recognizes that the possible victim is in fear? Ms. LEWIS. I am obviously going to have to seek some help in responding to these questions. I would be pleased to submit that. Mr. CLARKE. That is my major concern with respect to that. My other concern goes to the testimony of Ms. Avner, in which she says, "Contrary to the LRC commentary, we feel this defense may be valid in an extremely small number of cases".

You nevertheless concede the defense is a defense? Is that how I should read this?

Ms. AVNER. I believe it should not be a defense.

Mr. CLARKE. Then you would extend the sexual assault law to a situation where a person perceived himself or herself to be in a consent situation. As in statutory rape, we have an instance where the consent is not an element. You would then create another category of law where it would be the actor's perception of consent; that would